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District Court 25 June 2021

Bilal Masri v R

[2021] NSWDC 305

Traffic & driving
CONVICTION APPEAL D RIVING WHILST SUSPENDED NOTICE OF SUSPENSION INVALID

Citation: Bilal Masri v R [2021] NSWDC 305
Court: District Court of New South Wales
Date: 25 June 2021
Judge: Hatzistergos AM DCJ

Background

The appellant was stopped by police in Greenacre at 12:50am on 29 March 2020 while driving a white Audi S4. A licence check revealed a demerit point suspension recorded as running from 17 March 2020 to 16 June 2020, arising from four offences committed on 20 December 2019 that resulted in the loss of 18 demerit points against a maximum of 7 for a provisional licence holder.

The appellant was charged with driving while suspended under s 54(3) of the Road Transport Act 2013 (NSW) and was convicted in the Local Court. He appealed to the District Court under s 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW), which provides for a rehearing on the evidence given in the original proceedings.

The appellant gave evidence that he had never received the suspension notice in the mail and had no knowledge that his licence had been suspended before he was pulled over. He acknowledged, however, that he had been anticipating a suspension notice following the December 2019 offences.

  • Whether the Crown had excluded beyond reasonable doubt that the appellant held an honest and reasonable mistake about the status of his licence at the time of driving.
  • Whether the Notice of Suspension was valid, specifically whether it complied with the mandatory 28-day notice period required by s 40(2) of the Road Transport Act 2013 (NSW).
  • If the notice was invalid, whether the Crown could establish that the appellant's licence was in fact suspended when he was stopped.

Decision

The Court first considered the honest and reasonable mistake defence. Both parties accepted that, once raised, the Crown bore the onus of excluding that defence beyond reasonable doubt. The Defence argued the Crown had led insufficient evidence about when the penalty and reminder notices were issued, and pointed to the discretionary nature of the suspension power under s 39 of the 2013 Act. The Court found merit in this argument but ultimately did not need to resolve it, because the validity of the notice itself was determinative.

The central issue was whether the Notice of Suspension gave the appellant sufficient notice under s 40(2) of the 2013 Act, which requires the suspension date to be no earlier than 28 days after the notice is given. Under clause 6(3) of the Road Transport (General) Regulation 2013 (NSW), a notice sent by post is deemed given on the fourth working day after posting. "Working day" is defined in the 2013 Act as excluding Saturdays, Sundays and public holidays.

The notice was posted on Thursday 13 February 2020. Because Saturday 15 February and Sunday 16 February were not working days, the fourth working day after posting was Wednesday 19 February 2020. The suspension date specified in the notice was 17 March 2020. Counting 28 days from 19 February 2020 produces 18 March 2020, meaning the suspension was expressed to take effect one day too early. The Court held that the 28-day requirement in s 40(2) is mandatory.

Because the notice did not comply with that mandatory requirement, the suspension was not validly effected. Section 40(3) of the 2013 Act, which operates to suspend a licence upon service of a valid notice, therefore had no effect. The Crown could not establish that the appellant's licence was suspended on 29 March 2020, and the prosecution necessarily failed. The Crown, upon reflection following oral argument, conceded it was open to the Court to find in the appellant's favour and did not oppose the appeal being allowed.

Orders Made

  • Appeal allowed.
  • Conviction and sentence set aside.
  • Judgment of acquittal entered.

Key Takeaways

  • Under s 40(2) of the Road Transport Act 2013 (NSW), the date specified for a licence suspension to take effect must be no earlier than 28 days after the notice is given; the District Court confirmed this requirement is mandatory, not directory.
  • When a suspension notice is sent by post, the deemed date of service under clause 6(3) of the Road Transport (General) Regulation 2013 (NSW) is calculated by reference to "working days," which exclude Saturdays, Sundays and public holidays; intervening weekend days extend the service date and can affect whether the 28-day period is satisfied.
  • A deficiency of even one day in the notice period is sufficient to render the notice invalid, meaning a licence is not lawfully suspended and the offence of driving while suspended cannot be established.
  • An argument going to the validity of the suspension notice was raised for the first time on appeal; both parties accepted it was open to advance it on rehearing before the District Court under s 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW).
  • The honest and reasonable mistake defence was raised but not resolved, as the invalidity of the notice made it unnecessary to determine whether the Crown had excluded that defence beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Road Transport Act 2013 (NSW), ss 39, 40, 54, 257
- Road Transport (Driver Licensing) Regulation 2017 (NSW), clause 69
- Road Transport (General) Regulation 2013 (NSW), clause 6
- Interpretation Act 1987 (NSW), ss 3, 9, 11
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Fines Act 1996 (NSW) (referenced in argument)

Cases: No cases were cited in the judgment.